November 30, 2002
REPOLITICIZE THE COURT:
Crash-Test Dummy: Bush Fronts Scalia for Chief Justice
(James Ridgeway, November 27 - December 3, 2002, Village Voice)
Harvard's Alan Dershowitz thinks Scalia won't get the nod. "It would be just too provocative," he told the Voice. "Here's a guy who switched his vote and was the most important person on Bush v. Gore. The Democrats are not going to easily forgive him for that, number one. number two, he's the most reactionary justice on the court. Number three, the other justices hate him. He would be a terrible chief. He's exactly the kind of guy who maybe is tolerable as a single individual justice; I think when the White House looks it over carefully they realize he's a guy who divides people."
Opponents of a Scalia court would need Senate Democrats to mount a filibuster blocking the nomination. That hope, in turn, rests on the question of which jurist the White House would select instead, said Georgetown public-interest attorney David Vladeck. "Without knowing in advance who's being appointed to fill Justice Rehnquist's seat, it would be very difficult, given the composition of the Senate today, for the Democrats to successfully mount a filibuster, were they inclined."
Scalia's bid won't get far, predicted Dershowitz: "I think he's gonna be sent out as a stalking horse so that when, finally, the president appoints Sandra Day O'Connor, everybody'll heave a sigh of relief and say 'Thank God it isn't Scalia.' So I think we're gonna hear a noise, hear some Scalia noise, but in the end, I don't think it's going to happen."
Mr. Dershowitz is absolutely right; no matter how fine Mr. Scalia's mind may be, he's ill-suited to the Chief's job. Actually, what the Court could use,
and hasn't had for too long, is a really good politician, especially as Chief. One of the things that's overlooked about Earl Warren is that he'd been a governor, was used to hammering out legislation, and was able to bring these political skills to what is in many ways a fundamentally political job. (Recall that William Howard Taft even became Chief after being President.) One would think that either Frank Keating
or Orrin Hatch would make a terrific Chief.
Posted by Orrin Judd at November 30, 2002 7:25 PM
It should be Rudy Giuliani for Chief Justice. Failing that, he should be the Secretary of State.
too liberal. They should have made him Homeland Security Director.
Isn't it obvious Clarence Thomas is the best candidate for Chief Justice?
If the President wants a real stalking-horse candidate, the clear choice is John Ashcroft. He's eminently qualified (state attorney general, two-term governor of Missouri, US Senator, US Attorney General), he's clearly got the political skills, he's young enough (born 1942) to stay on the Court for at least 10-15 years and (personal interest disclosure) he's an alumnus of my own alma mater, the University of Chicago Law School.
And he'd drive the Left crazy.
J - What year?
(By the way, Richard Epstein nomination hearings would be so hilarious, it might be worth the 20-30 years of completely bolixed up law that would follow confirmation.)
I'd love to see Richard Epstein on the Court -- why do you think the law would be bollixed up?
Here's a story that Epstein tells on himself (although I am paraphrasing). He was consulting on an appellate brief in a big antitrust case. One question was whether a particular event, of a type that clearly would be allowed once and prohibited if it happened constantly, had happened sufficiently often to cross the line. Based on the existing precedent, the lawyers involved developed an extensive and sophisticated facts and circumstances test, weighing a number of variables. Epstein said that it was intuitively obvious that the answer was six. It should be allowed six times; the seventh was one too many. He could not understand why the court would not be willing to simply state that black letter rule.
Now, part of this is obviously schtick. But as a student, it is somewhat annoying to know that he knows the law forwards and backwards, will expect you to do the same by the time the final rolls around, but doesn't feel any particular compulsion to discuss the actual law as it actually exists in class. Of what interest would that be. Much better to know how the law ought to be.
If he were on the Court, at best you'd have a lot of one person dissents stating, in full, "It is obvious that the ex ante
rule should be six", with a 20 page footnote showing why the Court's decision and precedents make no sense at all. My worry is that he would start to convince people -- he is very convincing -- at which point the participation of legislature becomes strictly optional.
Warning: Tangential obsure law joke coming. I will, however, always treasure the memory of Epstein coming into our property final to tell us to insert the words "for 21 years" after the word "trust".
Ashcroft would be terrific.
I don't think that Ashcroft has the sort of relationship with Bush that would be necessary to overcome Rove's horror at the idea. Also, I'll be astonished if the first nominee isn't Hispanic, probably Gonzalez. For Chief, I'd love to see Thomas, but I doubt he wants to go through that. My guess is O'Connor, on the theory that this will make her somewhat more reliably conservative and give him the chance to nominate a second Chief after '04.
O'Connor may be the first to retire . . . she's reportedly eager to leave and has health problems, whereas Rehnquist loves the court and may leave only because he can now get a Republican replacement. Like you I don't see Ashcroft as popular or respected enough to ever be nominated.
The Chief will either be Thomas or a new appointee. I don't see why Thomas would object to being nominated for Chief . . .
PJ - I know that O'Connor's husband wants her to retire, but I'm not sure that she's ready to give up being the most powerful person in the country. I think particularly if she got to be the first woman Chief, she'd find a way to stick it out a couple of years and then retire in the second term.
As for Thomas, I think he's made a nice life for himself. He likes being on the Court, the justices have great working conditions, he's still young enough to be active on the outside, he and his wife go bombing around the country in his rv, I even think he's enjoying raising his nephew. He's able to do some good work for the community and he even gets to stir it up every now and then. Finally, he's developed a very congenial theory of the Constitution, to which he's able to adhere more rigorously than any of the other justices. I'm sure he'd like to be Chief, but does he really want to put himself and his family through what would probably be an even worse confirmation battle than last time?